The Warrantless Surveillance of Americans’ Email

The American Civil Liberties Union (ACLU) has filed a Freedom of Information Act (FOIA) lawsuit for records on how the United States government is reading Americans’ emails or other electronic communications without a warrant. They are interested in when it happens, how often, who the government is monitoring, how long monitoring typically lasts, and what policies (if any) have been established to regulate the surveillance of Americans’ private electronic communications.

First, the ACLU makes it clear the “widespread reliance” on electronic communications between “friends, family, and colleagues creates a strong public interest in determining to what extent the government is accessing private electronic communications without a warrant based on probable cause.”

In United States v. Warshak, 631 F.3d 266 (6th Cir. 2010), the Sixth Circuit held that the government violated the Fourth Amendment when it accessed over 27,000 emails from the defendant’s email account without a warrant based on probable cause. It is unknown whether, after Warshak, the government continues to access email without warrants in routine law enforcement investigations. It is also unknown whether the government accesses other forms of private electronic cornmunications, such as text messages and private messages sent through social networking sites, without a warrant based upon probable cause.

What little is known about government surveillance of private electronic communications has prompted public outcries, scrutiny, and debate. The Warshak decision was covered extensively in the media. The FBI’s “Carnivore” program, which the agency used to monitor criminal suspects’ email and Internet usage, caused a great deal of controversy when it was revealed in 2000. The National Security Agency has faced years of public scrutiny and debate over its domestic surveillance program, particularly on the matter of e-mail surveillance.

And in a blog post, the ACLU explains this lawsuit centers on fact that the government should not be allowed to keep how it is monitoring private communications secret. For one thing, without knowing how surveillance is being conducted, the public cannot be certain surveillance is being conducted lawfully. The public has a right to know how surveillance is being used.

The key here is, as NSA whistleblower William Binney said on Democracy Now! in April, the surveillance state has only expanded under President Barack Obama. The government under Obama has “assembled on the order of 20 trillion transactions about US citizens with other US citizens.” They’ve assembled data on “about everybody.” From this data, the government can target anyone.

In 2007, as more on the Bush administration’s use of warrantless wiretapping became public, telecommunication companies lobbied Congress for retroactive immunity so they would not be held accountable for turning customers’ personal data over to the government without a judicial warrant. As Mark Hosenball reported, legislation that would prevent lawsuits against warrantless wiretapping was drafted:

…the language proposed by the White House—drafted in close cooperation with the industry officials—is so extraordinarily broad that it would provide retroactive immunity for all past telecom actions related to the surveillance program. Its practical effect, they argue, would be to shut down any independent judicial or state inquires into how the companies have assisted the government in eavesdropping on the telephone calls and e-mails of U.S. residents in the aftermath of the September 11 terror attacks.

This legislation, known as the FISA Amendments Act, was passed in 2008. AT&T, Sprint, and Verizon each pushed for passage. Then-presidential candidate Obama made an empty threat to filibuster the legislation. But when it became clear that granting immunity was a part of his campaign’s and the Democratic Party machine’s wider strategy to dial-for-dollars, he backed away from opposing the legislation. And just over a month later, AT&T sponsored the Democratic National Convention. Those that attended walked home with tote bags that had the AT&T logo.

The relevance to the ACLU’s lawsuit is that the government is likely working closely with private companies to monitor communications of US citizens. This relationship means the government is probably reluctant to share records because it would reveal contracts would show consumers that companies are making data available to government for whatever purposes, whether citizens are suspects in cases or not.

Tor software developer Jacob Appelbaum powerfully described what companies are doing in the US on Julian Assange’s show, “The World Tomorrow,” last week:

It’s absolute madness to imagine that we give up all of our personal data to these companies and then the companies have become essentially privatized secret police where in the case of Facebook we have democratized surveillance and instead of paying people off the way the Stasi did in your country [Germany] we reward them as a culture—They get laid now. They report on their friends. So and so got engaged. Oh, so and so broke up. Oh, I know who to call now. This is the difference between privacy by policy and privacy by design approach to actually creating secure systems.

When you’re trying to target people and you know you live in a country that explicitly targets people—If Facebook put its servers in Gaddafi’s Libya or put it in Assad’s Syria, that would be absolutely negligent. So, knowing that’s reality, these companies have some serious ethical liability that stems from the fact that their building these systems and they’ve made the economic choice basically to sell their users out. This isn’t even a technical thing. It isn’t about technology at all. It’s about economics. And they have decided that it is more important to collaborate with the state and to sell out their users and to violate their privacy and to be a part of the system of control, to be paid back for being a part of the surveillance culture, to be part of that culture of control than to be resistant to it. So they build it. They become a part of it. They’re complicit and liable.

The companies also can easily secure immunity for their unlawful and intrusive actions against the people. If details on spying on electronic communications were made public, lawmakers would see money flood into their campaign coffers and they would instantly be on the floor discussing legislation to provide immunity to the telecommunication companies so damage to business was not incurred by any lawsuits.

The government (including lawmakers) has no intention of forcing bureaucracies to change procedures that will complicate operations between telecommunication corporations. The fact that Sen. Ron Wyden has to place a secret hold on the FAA authorization because he cannot get a satisfactory answer on how many Americans are being spied on by their government is evidence of that.

Should unlawful surveillance policies be exposed, companies can easily seek protection through legislation that retroactively excuses crimes and misconduct and makes such activity legal. So, not only is it impossible to reform the procedures or policies when they are kept secret, as the ACLU points out; but given recent history, the companies have a method for reconstitution that makes it impossible to change how surveillance is conducted.

In opposing the ACLU’s FOIA request, the government could feasibly say: why go through all this trouble? Just “trust” government that government is only monitoring people who pose threats to society.

Surveillance can either be done in secret or it can be done transparently. If done transparently, lawmakers will be forced to take the radical but necessary step of further normalizing and legitimizing warrantless surveillance of private communications through legislation. Yet it can all be done. The racket is ready to respond to preserve the flow of money between private companies and public agencies and institutions.